R (on the application of Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council

Town and country planning – Planning permission – Judicial review – Extension of time – Defendant local planning authority mistakenly granting unconditional planning permission for erection of three marquees – Claimant applying for judicial review long out of time – Whether extension of time should be granted – Whether merits of claim properly arguable – Whether permission to proceed with claim should be granted – Whether claim should be allowed – Application granted The interested party owned and operated the Thornton Manor Estate, at Thornton Hough in the Wirral. The claimant owned and operated the nearby Thornton Hall Hotel. The claimant and the interested party were competitors for the business of hosting weddings and other functions. Thornton Manor was a Grade II listed building in the green belt with historic gardens which were also Grade II listed. In December 2011, the defendant local planning authority granted unconditional planning permission to the interested party for the erection of the three marquees within the grounds of Thornton Manor, without limit of time. The claimant and the defendant said that that was a mistake and the planning permission should have been subject to a condition decided on by the defendant but omitted in error from the document granting planning permission. The error was that the permission should have been made subject to a time limit of five years, such that the marquees would have to be taken down not later than 19 December 2016. The decision made in committee was to impose such a five-year time limit, but the document formally granting permission omitted that time limit and nine other conditions. The claimant applied for judicial review. The defendant accepted and asserted that it made that error and did not contest the claim, though it was brought long out of time. The interested party submitted that the unconditional planning permission should stand and that the presence of the three marquees was lawful and would remain so in future, without any time limit. Issues arose whether: (i) an extension of time should be granted; (ii) if time was extended, the merits of the claim were properly arguable, such that permission to proceed with the claim should be granted; and, if it arose, (iii) the claim should be allowed and appropriate relief granted. Held: The application was granted. (1) The extension of time would be granted despite the long delay. The interested party bore considerable responsibility for the lateness of the claim because it knew of the error and chose to remain silent about it. Furthermore, the extreme lateness of the challenge was not as prejudicial to the planning process as usual because the presence of the marquees was not contrary to the intended scope of the planning permission and contrary to the defendant’s decision until December 2016. The public interest lay in the court having power to rectify the error. That public interest was represented by the statutory planning powers of the defendant. On judicial review of the exercise of those powers where a mistake had led to illegality, its guardian was the Administrative Court. (2) Planning permission was granted by issue of the decision notice and any legal flaw arising from the omission of the intended conditions, including the five-year time limit, did not prevent the planning permission from having legal effect, unless and until quashed by the court. A decision which was defective by reason of a legal flaw could not normally be treated as a complete nullity, such that it was wholly void and could safely be ignored. There were cases where a legal flaw was present in a decision, but the decision then effectively acquired legitimacy, despite the flaw, either because no challenge was brought to have the decision quashed; or because any challenge came too late and the court was unwilling to extend time; or because the court was for some other reason unwilling to grant relief; for example, because the claimant lacked standing to bring the claim. It followed in the present case that the presence of the three marquees did not offend against the law. (3) The permission, while not wholly void, was flawed by the erroneous absence of the conditions the committee had decided upon and, subject to a valid challenge by a qualified challenger, susceptible to quashing. Accordingly, the court would exercise its power to rectify the error by quashing the permission. The authority delegated to officer level to issue the permission, plainly was not intended to include authority to undo the committee’s decision that the permission should be conditional. That would fly in the face of the committee’s decision to accept the recommendations in the report to the committee. Unconditional and permanent planning permission to erect the three marquees and keep them there would not have been granted or considered as being in the public interest. The permanent presence of the three marquees was inappropriate development in the green belt. Their presence ought to have ceased in December 2016 unless a fresh permission had been granted, application for which was deliberately not made. If the marquees were now allowed to stay permanently, the proper operation of the planning process would have been subverted, contrary to the public interest. (4) The interested party ran its commercial operation from 22 December 2011 knowing that the presence of the marquees after 19 December 2016 would be, at the very least, a matter of possible controversy and possible legal challenge. Given the failure of the interested party to draw the defendant’s attention to the apparent error, it was unattractive then to assert that the claimant and the defendant bore responsibility for the delay in the matter coming to light. The interested party had no reason to suppose that the defendant would issue an unconditional planning permission, having decided to issue a conditional one. It was detrimental to good administration that the marquees were still there. Good administration included correct implementation of planning decisions. Furthermore, the interested party signed a section 106 agreement embodying the omitted conditions including the five-year time limit. Proceeding in this litigation as if it were not bound by the terms of that agreement only compounded the unconscionability of its position. Anthony Crean QC (instructed by Weightmans LLP) appeared for the claimant; Alan Evans (instructed by Wirral Metropolitan Borough Council) appeared for the defendant; Christopher Lockhart-Mummery QC (instructed by Gateley plc) appeared for the interested party. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council.